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Ninth Circuit:
VanDyke Raps Upholding Allegedly Religion-Based Firing
Denial of Rehearing En Banc Draws Dissent From Him, Two Other Ninth Circuit Judges
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday filed an order denying a rehearing en banc of a case in which the plaintiff claims he was discharged as fire chief for the City of Stockton based on his Christian beliefs and, in particular, for attending a religious leadership conference during work hours, drawing an adamant dissent from Judge Lawrence VanDyke, partially joined in by Judge Consuelo M. Callahan.
“We should have reheard this case en banc to bring it in line with the Supreme Court’s religion precedents, set the record straight, and undo the damage it has done to our Title VII caselaw,” VanDyke asserted.
Title VII bars discrimination in employment “based on race, color, religion, sex, or national origin.”
VanDyke asked whether anyone would “seriously doubt that if the plaintiff in this case were” a lesbian who was fired after attending a homosexual meeting on city time “this court would have failed to rehear this case en banc?”
Amended Opinion
The initial decision by a three-judge panel, filed last Aug. 3, and an amended version, filed Friday, uphold a summary judgment awarded by District Court Judge Troy L. Nunley of the Eastern District of California against the plaintiff, Ronald Hittle.
VanDyke contended the revised version seeks to cover up, while not remedying, flaws in the initial opinion.
The two opinions were authored by District Court Judge Edward R. Korman of the Eastern District of New York, sitting by designation, and were joined in by Circuit Judges Ronald M. Gould and Sandra S. Ikuta. Gould and Korman voted to deny the petition for a panel rehearing, and Ikuta voted to grant the petition.
Ikuta’s Dissent
Ikuta also dissented from the denial of an en banc rehearing, and was joined by Callahan and Circuit Judge Ryan D. Nelson. She explained that she “voted in favor of rehearing this case en banc because our conclusion is in tension with other Ninth Circuit Title VII cases” which set a low standard for the granting of summary judgment in employment discrimination cases.
She added that the decision not to rehear the case en banc “does not mean that employers are entitled to a more generous summary judgment standard when they engage in discrimination on the basis of religion than when they engage in other sorts of discrimination.”
Callahan also penned a brief dissent, in which she said:
“…I fear that the panel’s opinion will be read to foreclose claims of discrimination for all protected classes because our court continues to give lip service to the Supreme Court directive that we view evidence in the light most favorable to the nonmoving party. It is the province of the jury, and not judges, to decide disputed issues of fact.”
VanDyke’s Protest
VanDyke wrote:
“In its stubborn insistence on ruling against Chief Hittle, the panel has twisted the record into knots and badly misstated Title VII law. Its decision (1) abdicates its responsibility to read the record in the light most favorable to Hittle at the summary judgment stage; (2) allows employers to escape liability for repeating discriminatory remarks simply by hiding behind those who say them first; and (3) mangles Title VII’s ‘motivating factor’ analysis. Perhaps most glaringly, its original opinion also incorrectly heightened the showing a plaintiff is required to make to demonstrate disparate treatment.
Hittle contended that then-City Manager Robert Deis and then-Deputy City Manager Laurie Montes caused his termination based on religious bias. Korman said in the Aug. 4 opinion that neither made “any remarks demonstrating their own hostility to religion, but focused on the Summit’s lack of benefit to the City and other evidence of Hittle’s misconduct, Hittle failed to demonstrate that hostility to religion was even a motivating factor in his termination.”
‘Hostility’ Not Required
VanDyke noted that the U.S. Supreme Court, in its 2020 decision in Bostock v. Clayton County, spells out that all that is required to support a case for Title VII discrimination is intentional disparate treatment. He said:
“Recognizing at least this last mistake, the panel’s amended opinion retires its former use of the word ‘hostility,’ replacing it with the more accurate (but less specific) ‘discriminatory animus.’ Not only do those changes not fully fix the original opinion’s legal errors, but they also put the panel, which apparently remains as determined as ever to rule against Hittle, in a pickle. Notwithstanding its many other errors, the original opinion correctly acknowledged that the ‘gravamen’ of the ‘notice terminating Hittle was the religious nature of the leadership event.’…”
He went on to say:
“Instead of simply accepting the inevitable effect of its prior errors and ruling for Hittle, the panel attempts to quietly paper over them by revising its view of the underlying facts. Now we are told that the ‘religious nature of the leadership event’ was merely an ‘aspect’ of Hittle’s firing, not its ‘gravamen.’ One might reasonably expect some kind of explanation for the panel’s convenient revelation on this dispositive issue of fact, but none is forthcoming.
“This willingness to improperly reinvent the facts of this case against Hittle to justify a past outcome is not a good look for our court—particularly when we have a well-established obligation to read the facts in Hittle’s favor at this stage of the case.
“In short, the panel’s modifications in the amended opinion merely attempt to hide meaningful changes to the logic of its decision behind a few unassuming and unhelpful changes in verbiage.” The judge also disputed Korman’s statement that Montes—who was Hittle’s direct supervisor—had not expressed animus toward Hittle’s dedication to his faith. He said she had, in fact, voiced the view “that Hittle was acting too Christian at work.”
Phantom Violation
VanDyke commented “though the City never mentions the Establishment Clause by name, it sought to avoid an inference of discrimination by invoking vague notions of avoiding the endorsement of religion.”
Citing the 2022 U.S. Supreme Court decision in Kennedy v. Bremerton School District which held, in an opinion by Justice Neil Gorsuch, that the free exercise clause of the First Amendment protects the right of a public high school football coach to pray with players without violating the establishment clause. VanDyke wrote:
“Montes’s conclusion that Hittle must not associate with other Christians in the Fire Department or attend a Christian conference because of concerns that the City ‘is not permitted to further religious activities’ reflects nothing more than fear of a ‘phantom constitutional violation[].’ ”
Under these circumstances, he declared:
“This is not the first time this court has refused to rehear a case in which a government employer has sacrificed its employees’ religious rights in an ill-advised effort to satisfy the supposed requirements of the thoroughly repudiated endorsement test. And given our court’s refusal to address this mistake en banc, it likely will not be the last….Title VII has now become collateral damage in our crusade against ‘acting Christian’ in public workplaces.”
Amended Opinion
In the amended opinion, Korman concluded that Hittle was unable to overcome the non-discriminatory reasons given by the city as to the reasons for his termination and declared:
“Simply put, the summary judgment record does not contain evidence to raise genuine issues of material fact sufficient for Hittle to meet his burden to demonstrate that Defendants’ legitimate non-discriminatory reasons for firing him were mere pretext for religious discrimination.”
He said that even though a report that was prepared on Hittle’s conduct and the notice of termination make reference to the religious nature of the leadership conference that was attended, “a nexus to a protected characteristic is not enough to preclude summary judgment for the employer.”
The case is Hittle v. City of Stockton, 22-15485.
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